SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FOULIS
[2015] SASCFC 90
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
13 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - RECEIVING - STOLEN PROPERTY
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to the offences of aggravated firearm possession whilst unlicensed, trafficking in methylamphetamine and theft by receipt. He was subject to a two-month suspended sentence bond at the time he committed the offences. The suspended sentence was revoked. He was sentenced to a total of imprisonment of five years, with a non-parole period of three years and four months for the offending and breach of bond.
On appeal, it was argued that the sentence was manifestly excessive and the appellant was not afforded procedural fairness as a result of the trial Judge referring when sentencing to evidence of trafficking in ecstasy, which was not the subject of the charge, as well as trafficking in methylamphetamine. These remarks were in the absence of any such submissions as to trafficking in ecstasy being made by the prosecution.
Held (Gray and Sulan JJ, Kelly J agreeing):
The Judge's reference to ecstasy indicated it was a factor relied upon by him in sentencing. The appellant was not given an opportunity to address the presence of ecstasy.
The sentence imposed was not manifestly excessive in all the circumstances.
Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 1977 (SA) s 11, s 34A; Criminal Law Consolidation Act 1935 (SA) s 134(1), referred to.
R v Kong (2013) 115 SASR 425; R v Viola [2015] SASCFC 2; R v Pollitt [2007] SASC 382, discussed.
R v FOULIS
[2015] SASCFC 90Court of Criminal Appeal: Gray, Sulan and Kelly JJ
GRAY AND SULAN JJ.
This is an appeal against sentence.
The appellant and defendant, Terry Richard James Foulis, following his pleas of guilty, was sentenced by a Judge of the District Court in respect of the offences of trafficking in methylamphetamine,[1] aggravated possession of a loaded and concealed .22 calibre handgun about his person whilst not holding a firearms license,[2] and theft by receipt of a motor vehicle.[3] All offences were committed at a time when the defendant was subject to a two-month suspended sentence of imprisonment for driving under disqualification.
[1] Controlled Substances Act 1984 (SA) s 32(3).
[2] Firearms Act 1977 (SA) s 11.
[3] Criminal Law Consolidation Act 1935 (SA) s 134(1)
When sentencing, the Judge noted that the defendant was entitled to a sentencing discount…
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CaseChat Overview and Summary
The central legal issue before the appellate court was whether the sentence imposed was manifestly excessive. The Director of Public Prosecutions argued that the appellant was not entitled to leniency, particularly given his admission of involvement in drug trafficking, which was submitted to negate any significance of a want of procedural fairness.
The Court of Appeal, comprising Gray, Sulan, and Kelly JJ, considered the submissions. While acknowledging that the sentencing judge's reference to ecstasy might have influenced the sentence, the Court ultimately concluded that the final sentence was not manifestly excessive. The reasoning applied was that the totality of the offending and the breach of the suspended sentence bond justified the imposed term.
Consequently, the appeal against sentence was dismissed.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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Established by: GRAY AND SULAN JJ
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